IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120006769 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests approval of Transfer of Educational Benefits (TEB) under the Post-9/11 GI Bill to his children.

2.  The applicant states he was in the process of retiring from the U.S. Army, when the TEB program was being approved and he was never counseled or given the opportunity to transfer his benefits to his family members.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  After completing 20 years, 10 months, and 23 days of creditable active service, the applicant retired from the Army on 30 September 2009 by reason of sufficient service for retirement.

2.  During the processing of this case, on 21 May 2012, an advisory opinion was obtained from the Human Resource Command, Chief, Enlisted Professional Development Branch.  This official recommended granting the applicant administrative relief because the Post-9/11 GI Bill was implemented on 1 August 2009 and he was separated from active duty within 90 days of the program being implemented. 

3.  The advisory official acknowledged that many Soldiers who left service during the first 90 days of the program were not fully aware of the requirement to transfer benefits prior to leaving active service.  The advisory official stated:

	a.  A Soldier must be currently on active duty or a member of the Selected Reserve at the time of TEB to dependents (on or after 1 August 2009).  The applicant retired from the military on 30 September 2009.

	b.  The applicant was eligible to participate in the program and he had family members eligible to receive those benefits.

	c.  The applicant had more than 20 years of service when he retired; therefore, he would not have incurred an additional service obligation.  Furthermore, he had no record of adverse action.

4.  On 23 May 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 30 May 2012, he responded by stating he agreed with the advisory opinion.

5.  The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law
110-252, House of Representatives, 2642.  In July 2008, Congress passed a law for the Post-9/11 GI Bill which went into effect on 1 August 2009.

6.  Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused education benefits to family members.  A service member may execute transfer of benefits only while serving as a member of the Armed Forces.  The VA is responsible for final determination of eligibility for educational benefits under this program.  General eligibility criteria are as follows:

	a.  Service members must have accrued specific qualifying active service on or after 11 September 2001 of at least 30 continuous days of qualifying active duty service if discharged due to a service-connected disability or between 90 days and 36 months or more of total aggregate qualifying active duty service.

	b.  Service members must have served on active duty in the Regular Army or as a Reserve member ordered to active duty under Title 10, U.S. Code, 
sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 (orders in support of contingency operations, i.e., mobilization), and must have received an honorable discharge at the conclusion of active service.


7.  The program guidance stipulates that if a service member becomes retirement eligible during the period beginning 1 August 2009 through 1 August 2013 and agrees to serve the additional period as specified below, he/she is entitled to transfer benefits to his/her dependents.  A member is considered to be retirement eligible upon completion of 20 years of active Federal service or
20 qualifying years as computed under Title 10, U.S. Code, section 12732:

	a.  service members eligible for retirement on 1 August 2009 – no additional service required;

	b.  service members who have an approved retirement date after 1 August 2009 and before 1 July 2010 – no additional service required;

	c.  service members eligible for retirement after 1 August 2009 and before 1 August 2010 – 1 year of additional service is required;

	d.  service members eligible for retirement on or after 1 August 2010 and before 1 August 2011 – 2 years of additional service is required;

	e.  service members eligible for retirement on or after 1 August 2011 and before 1 August 2012 – 3 years of additional service is required; and

	f.  active duty service members who separate, retire, transfer to the Reserve, or who are discharged on or prior to 1 August 2009 are not eligible to elect transferability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests approval of the TEB under provisions of the Post-9/11 GI Bill to his children.

2.  The applicant had more than 20 years of service upon retirement, no additional service requirement, no evidence of any adverse action, and he would have been eligible to transfer the benefit to either his spouse or child if he had transferred the benefit before he left the service.

3.  During the initial implementation of this new program, many Soldiers at all grades were confused regarding their eligibility and/or the procedure to apply for such benefit.  This confusion was exacerbated with heavy use of the Department of Defense website and the lack of proper log-in credentials for those who may have signed out on transition leave within 90 days of the programs implementation.  Similarly, officials at some education centers may have also been confused regarding the implementation instructions and may not have conducted proper counseling.

4.  His retirement date was 30 September 2009.  It is reasonable to presume that had he been aware of the procedure to transfer his benefits while in an active duty status he would have done so.  Therefore, as a matter of equity, his records should be corrected to show he did so in a timely manner prior to his effective date of retirement.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant filed his application and the Army approved his request to transfer Post 9/11 GI Bill benefits to his eligible family members prior to retirement, provided all other program eligibility criteria are met.




      _______ _   __x_____   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120006769



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ABCMR Record of Proceedings (cont)                                         AR20120006769



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